I have made a will? Where to store it?

A will is a very important document and should be kept in safe custody- preferably in your solicitor’s safe. As an alternative, it should be kept in safe custody with your financial institution.

If a will is held by you even though it may have been lost, stolen or accidently destroyed then there is a presumption by the Court that you as the testator have deliberately destroyed it and any prior will made by you will take effect and be admitted into probate. If there are no prior will/s made by you, then your estate would be distributed as per the intestacy laws in your state.

It would be up to your executor to rebut this presumption of revocation in order to admit a photocopy of your will to probate and to do so must satisfy these five requirements as per the case of Cahill v Rhodes [2002] NSW SC 561:

  1. There is actually a Will or document purporting to embody the testamentary intentions of a deceased person;
  2. The document revoked all previous Wills;
  3. The presumption that when a Will is not produced it has been destroyed is overcome;
  4. There is evidence of the Will’s terms; and
  5. There is either evidence of due execution or that the deceased person intended the document to constitute his or her Will.

In the Will of David Arthur Friend (deceased) 2023 QSC 7, the original will had been lost and was determined to be last held with the solicitor, Courtney Lockett of the firm, Lockett McCullough Lawyers. Ms Lockett had placed the original will in her car and was travelling between her firm’s two offices when her car was stolen. Even though Ms Lockett’s car was recovered, the contents in her car including the original will were not. It was determined that as the original Will was held by Ms Lockett following the deceased’s death and was lost as a result of a robbery, the presumption that the Will was not destroyed was overcome and a photocopy of the will was admitted to probate.

If the will had been held with the testator, then it would have been extremely difficult to prove the five requirements mentioned in Cahill and there would have been a strong presumption of revocation of the original will by the testator even if the will had been actually lost or stolen.

I am the executor of the will and cannot find the original will of the deceased. What to do next?

The first step is to thoroughly search the deceased’s last known address and make enquiries with all the deceased’s asset holders including their known lawyers, banks, financial advisers, accountants, etc as well as the NSW Trustee and Guardian.

If thorough enquiries are made and the original will is last traced to the possession of the testator, then there is a presumption by the Court that the will was destroyed by the testator with the intention of revoking it (as above). In such a situation, you should contact an experienced wills and estates solicitor to advise you on how to make an application to probate without holding the original will.

How do I revoke my will?

As a testator, you have the right to revoke your will at any stage of your life. However, the best way to revoke a will is to execute a new will and always seek advice from a wills and estates solicitor.

This was seen in the case of Miruzzi [2018] NSWSC 1899 where a testator tore up a photocopy of the will believing it to be the original will. J Lindsay found it was not revoked even though it may have been the testator’s intention to revoke the original will. J Lindsay stipulated that the revocation of a will should warrant the direct involvement of a lawyer.

Involuntary revocation

Your will/s are automatically revoked upon divorce or upon marriage. It is crucial that a will is executed once either of these events have taken place, otherwise in the event of your death, your estate will be distributed as per the intestacy laws and be inconsistent with your wishes.

Should I advise my executors of the location of the original will

Yes. The executors of your estate should be aware of the location of your original will should the worst happen. It is also recommended that your beneficiaries be advised also of the location of your original will in the unfortunate event that should you and your executors die together. Unnecessary enquiries, searches and a “will hunt” will be costly to your estate.

Contact Turner Freeman Lawyers today to discuss and set up your will. Call our team on 13 43 63 and chat with on our Wills and Estates experts today.